Starting a Small Business (Script 265)

From Clicklaw Wikibooks

The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. This script gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call the Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

There’s a lot to be said for starting your own small business. You can be your own boss, and if it goes well you'll have the satisfaction of having created something of value. But statistics show that small businesses have a high failure rate too. Often it's because of inadequate or unrealistic business planning. This script discusses some of the legal aspects to starting a business that you should consider.

Three ways to start a business

Buy an existing business

You can buy either the shares of a business or the assets. Buying the assets is usually less risky. Both options have pros and cons. You should discuss the options with a lawyer and an accountant.

The advantages of buying a business include loyal customers, trained employees, reliable suppliers, and fully equipped premises. Sometimes the seller will stay on for a while until you learn the business.

But you pay for these benefits—buying a business usually costs more. Be careful that you get what you have been promised and are paying for, without any hidden liabilities. Investigate the business and its assets. Start early because this verification process takes time.

You might want the seller to sign an agreement promising not to compete with you, recruit your key employees, or use confidential information about your business.

All these things should be covered in a written purchase agreement. If you're thinking of buying a business, consult your lawyer early—before making an offer—to protect yourself. Then you can still negotiate the deal you want, based on all that you have learned about the business.

Buy a franchise

A franchise is a common way to start a business. It’s a system for distributing and marketing a product or service, such as the right to sell a certain brand of fast-food hamburgers or a dollar store. Sometimes financing and training are supplied, so a franchise can be a good turnkey operation. Usually you must buy goods or services from the “franchisor” (the person or company who grants you the franchise) on an on-going basis, as well as pay for your initial investment. And there are almost always restrictions on how you run the franchise. Sometimes these are so strict that you're the boss in name only. And there's a danger that you may end up paying substantial royalties or supply premiums. Also, franchisors often require a deposit to apply. Don’t give the deposit until you’re sure you qualify for the franchise.

If you're thinking of a franchise, check its reputation in the business community, and have your lawyer examine the agreement before you sign. Depending on the franchise, some terms of the agreement may be negotiable, so you may be able to do better than what the franchisor first offers you. On the other hand, many terms of franchise agreements are not negotiable (unlike agreements to buy a business). So be sure that the franchise business model will work for you before you are legally bound.

Start a new business

There are pros and cons to starting a new business. It’s usually less expensive than buying a franchise or existing business. But on the other hand, you don’t get any support from a seller or franchisor. So you start with no customers, and you will lose money while starting up.

If you start from scratch, you must decide what form of business to use:

a sole proprietorship

a partnership

an incorporated company

There are advantages and disadvantages to each of these. What’s best for you will depend on your circumstances.

Sole proprietorship

This is the simplest form of business. It has several advantages:

It’s the least expensive form of business to set up.

You don't have to share the profits with anyone.

Decision-making is quick and management is relatively easy—there's no one to consult but yourself.

You can do business under a business name even if you’re a sole proprietorship. For example, as John Smith, you can do business under the name of “The Sandwich King.” (But make sure you’ve registered the name before using it.)

But there are disadvantages too:

If you die, the sole proprietorship comes to an end.

You have unlimited personal liability for the debts of the business, so if the business fails, you may risk losing your personal assets, such as your house and car.

If the business makes money, it will be taxed as your personal income—you don't get the benefit of the lower, small-business tax rate. On the other hand, as many businesses don’t make money in the first few years, you’ll have tax deductions you can use personally. A good rule of thumb is to save a percentage equal to your potential taxes so that you don’t have a large tax bill at the end of the year.

Partnership

A partnership combines the talents and resources of two or more people to suit the needs of a business. A partnership agreement setting out each partner's rights and responsibilities is very important, and you should take the time to develop one before you start the partnership.

But there are disadvantages to a partnership. As a partner, you’ll be personally responsible for all the debts of the partnership and, generally, you'll be bound by the acts of your partners, even if you don't agree with them.

The biggest disadvantage of a partnership is joint liability. Any partner can be held wholly liable for the actions of another partner who acted within the scope of the partnership and incurred liability. A limited liability partnership (LLP) can limit your liability for another partner’s actions. You should discuss it with a lawyer. Script 266, called “Forming a Partnership” has more on this.

For tax purposes, each partner treats their share of the partnership's profits as personal income.

For more information on partnerships, check Script 266 on “Forming a Partnership”.

Incorporated company

A company is a separate legal entity from its owners. A company is liable for its own debts, owns its own property, and can sue or be sued. Its owners, called shareholders, enjoy limited liability. This means that their personal assets are generally not at risk and they are not personally liable for the company’s debts. The loss that they risk is their initial investment.

But sometimes this isn't as good as it sounds. Lenders often insist that shareholders of small companies personally guarantee the company's debts, so the lender is sure of getting repaid even if the company can't pay. And in some cases, a shareholder may be personally liable for a company's debts. You should have a shareholder’s agreement. See a lawyer about that.

If you incorporate, you must use the words “incorporation,” “limited” or “corporation” (or Inc., Ltd., or Corp.) after the company name.

You can incorporate federally or provincially. (If you’re going to do most of your business in BC, you should register in BC, as it’s much easier in the long run.)

A company files its own separate tax return and pays its own tax. Shareholders pay tax on what they receive in dividends, bonuses or salary from the company. Depending on your personal income level, you might be able to save tax by incorporating.

In addition to filing tax returns, each year a company must file either provincial or federal corporate returns with the corporate registry in the jurisdictions where it operates.

For more information on incorporating a company, check Script 267 called, “Forming a Private Company”.

You’ll need a business licence and name approval

Whatever form of new business you choose—sole proprietorship, partnership or company—you’ll need to get a business license and name approval. You get a business licence from your town or city hall, and the cost will vary depending on the type of business and whether it's operated from commercial or residential premises. You can get the name approval from the provincial government. Many banks won’t give you financing until you have a business licence and name approval.

Other government regulations and requirements may apply

Licences and registrations: Some businesses cannot be carried on at all unless you’re legally qualified to do so. For example, you can't start up a real estate agency unless you’re licensed. So make sure you have any special licenses or registrations required for your particular business.

Employee rules: If you have employees, you’ll have to set up accounts with the Canada Revenue Agency (CRA) for withholding taxes, Canada Pension Plan (CPP) deductions, and Employment Insurance (EI) premiums. You may also have to set up accounts for GST and Provincial Sales Tax payments and Workers Compensation payments.

Zoning and bylaws: Do you know where you’ll be located? Some types of business can't be operated in certain areas because of zoning by-laws. If you're planning to run your business from home, check the by-laws at your local city hall, and if you live in a condominium, look at the strata corporation by-laws. As for commercial premises, just because someone is willing to sell or rent space to you doesn't mean that the property meets all zoning requirements for the business you have in mind. Check this out yourself at your town or city hall.

Building permits: If you're going to renovate the premises, you'll need a building permit. If you're renting commercial space, you'll probably have to pay at least a share of all municipal taxes on the premises, including a business tax, over and above your rent. Get your lawyer to review your lease agreements before signing them.

Other regulations: Depending on the business, regulations may apply to your product or service. For example, some products have labeling requirements and door-to-door sales are regulated.

Consents from third parties: When buying the assets or shares of a business, the purchase may require third-party consent and approval. For example, if the business operates from leased premises, the landlord will need to agree to the sale and transfer (assignment) of the existing lease to a new lease with the new owner.

More information

Small Business BC has information and guides on starting a business. Call 604.775.5525 in Vancouver or 1.800.667.2272 elsewhere in the province.

The federal Industry Canada website has information and guides on starting a business, incorporating a federal company, patents, taxes, and so on.

Check the provincial OneStop Business Registry website which lets you apply for various business licences and registrations at one time. It also refers you to “kiosks” where you can get a real person to help you. The OneStop Help Desk number is 250.370.0332 in Victoria or 1.877.822.6727 elsewhere in BC.

Your lawyer, accountant or bank manager can advise you on certain matters. Many school boards and colleges offer seminars on starting a business. Your public library has a wealth of information including trade directories and information on sources of government assistance.

Finally, talk to other people who have started their own business.

[updated November 2016]

The above was last reviewed for accuracy by Bruce Hallsor and Oliver Hamilton, and edited by John Blois.